In order to protect one man, the Judicial system has singularly failed, Sr. Adv. Dushyant Dave

The controversy surrounding the death of judge BH Loya has been raging on social media the past week. The allegation that former Bombay High Court Chief Justice Mohit Shah offered bribe to judge Loya to decide Sohrabuddin encounter case in favour of BJP leader Amit Shah, has shaken the legal fraternity.

I have stopped getting surprised at the indiscretions on the part of judges. But yes, it is extremely shocking.

Do you think such alleged infractions on the part of judges have become more frequent in the last five to ten years?

There is no doubt about the fact that judiciary is a great institution. It has great judges even today. However, the difficulty is that there is a minority in the judicial system, which is transgressing its limits and indulging in misconduct and that is giving judiciary an extremely bad name.

But what saddens me most is that the majority of good judges remain silent and are not willing to rise against this epidemic which is setting in. I would say that is extremely disappointing.

Two years ago, you had written a letter to then Chief Justice HL Dattu opposing elevation of Justice Mohit Shah to Supreme Court? The media had refused to carry it back then. Do you see a repeat of the pattern?

Today, the Media is thoroughly compromised. That is the biggest challenge. However, I don’t blame them completely. There is an atmosphere of fear today in the country.

The difficulty in India is that media is controlled by rich business houses and those business houses have a lot to hide. They have lot of skeletons in their cupboards. As a result, the media controlled by them is automatically forced to remain silent.

Justice Mohit Shah has refused to speak on this issue.

I have no doubt about the fact that Justice Mohit Shah has not only done great damage to himself and to the institution of judiciary but also to the cause of justice.

Judicial system has singularly failed, in order to protect one man – Amit Shah. We are not a fragile nation with a fragile judiciary. We have a very good judiciary. Yes, we do have aberrations like ADM Jabalpur but otherwise our judiciary has always come forward to protect the rule of law and to ensure that fundamental rights of citizens are protected.

But what about the rights of the brother of Sohrabuddin? Does he not have rights? Let us assume that Sohrabuddin and his friend had criminal antecedents. What was the fault of his wife, who was murdered in extremely shocking circumstances?

The State has an obligation to investigate so that nobody does this. The Supreme Court has repeatedly said that fake encounters have to stop. If we are going to allow the police to become our accuser, prosecutor and judge, what is going to happen in this country? Nobody will be safe.

I must say with great regret that Justice Mohit Shah has actively abetted in what has happened. His role and the role of lawyers, who were guiding the case, need to be independently investigated. He was not acting alone. He was under the guidance of many lawyers. It is high time that somebody goes into it and re-opens the whole thing.

There are lots of allegations about lower judiciary being compromised, especially in States like Gujarat. What are your thoughts, especially in the light of the recent reports on Judge Loya’s death?

Let us not blame the lower judiciary alone. Let us try and understand the facts of this case. The fact of the matter is that three people were killed – Sohrabuddin, his wife Kausar Bi and Sohrabuddin’s friend Prajapati. The Supreme Court appointed an SIT to investigate the case. The SIT comprised of officers of the Gujarat police including the present Acting DGP Geeta Johri. They gave a report to the Supreme Court admitting that the killings were fake encounters.

This was at a time when Narendra Modi was the Home Minister of Gujarat and Amit Shah was the Deputy Home Minister.

The Supreme Court then transferred that case to CBI because it felt that Gujarat police will not be able to do justice.

CBI, therefore, investigated and filed a charge sheet. A prima facie case was made out against Amit Shah and other accused including top police officers.

However, after 2014 elections things have gone completely haywire. The first judge, who was hearing the matter, was transferred under very suspicious circumstances by Chief Justice Mohit Shah. This was done despite clear direction by the Supreme court that the same judge should conduct the trial from beginning to end.

It was a direction to the administrative committee of the Bombay High Court. This directive is binding on the High Court under Articles 141 and 144. By not complying with the direction, the administrative committee of High Court has committed contempt of court.

If they felt that the learned judge wanted a voluntary transfer, they should have moved the Supreme Court and taken Supreme Court’s permission. That is the least they could have done. They did not do that.

The second judge who heard the case was Mr. Loya. He passed repeated orders directing Amit Shah to appear before the court. Since, it is a criminal case, the accused cannot skip the hearing unless he is expressly exempted.

And then Mr. Loya passed away. We don’t know how he died. But there is no doubt that his death has happened in extremely suspicious circumstances. It needs an immediate investigation at the highest level.

What is disgusting is that the administrative committee of the Bombay High Court including the then Chief Justice did not immediately hold an enquiry into the death of one of their own. If you fail your own subordinate judiciary, you have no right to become High Court judges. You have an absolute duty towards them and you have failed in that duty miserably. I would say it is not an innocent failure, they have failed deliberately and with mala fide.

It just does not end there. The accused are discharged. Why is it that the CBI has not filed an appeal against the discharge? I have read the order of discharge and I can say that it can be shred into pieces in seconds. It is completely untenable.

Today, CBI is running after every opposition leader, maybe justifiably, I have no grievance about that. But they have an equal duty to file an appeal against that discharge [in Sohrabuddin case] forthwith to the High Court.

Further, Harsh Mandar filed an appeal to the Supreme Court. The Supreme Court was justified in dismissing the same because it felt that Mandar lacked the locus to file an appeal. But at that stage the Supreme Court could have perhaps asked the CBI, which was appearing before the Supreme Court, to file an appeal. This was a case, which should have been brought to a logical end. It cannot be terminated at the discharge stage. This was not a case for discharge.

Judicial system should swing into action immediately and take remedial and corrective measures by using extraordinary powers under Article 142 so as to correct this injustice. A life has been lost, we don’t know for what reason, but justice has been the biggest victim.

What message are we sending to the subordinate judiciary? Which judge will risk his life today? Subordinate judges work in the most trying conditions. They are vulnerable from all quarters – criminals, police, rich people, politicians. They are under tremendous pressure and are facing tremendous challenges. It is, therefore, imperative that the higher judiciary does something.

I really hope and pray that at least the administrative committee of Bombay High Court – because I don’t expect anything to be done by the Supreme Court in today’s environment – does something in the matter immediately before people lose complete faith in the judicial system.

Why do you think the Supreme court will not act?

I don’t think that will happen in today’s environment. Every politically sensitive matter is handled by certain Benches. The senior-most judges in courts 2, 3, 4 and 5 are being completely overlooked when it comes to such cases.

The Supreme Court has ruled that CJI is the master of the roster. Let us accept that. However, the allocation of matters has to be fair and reasonable.

We have a great institution, a great judiciary. I respect my judges a lot. I hope that judges would correct themselves as quickly as possible.

Do you think certain judgments by the Supreme Court are helping perpetuate this aura and immunity which the judges have granted to themselves? In Kamini Jaiswal’s case, Supreme Court placed reliance on DC Saxena case and came down heavily upon you for forum shopping?

I have my own views about that. First and foremost, there was no disrespect meant to the CJI. If you read the petition filed by Kamini Jaiswal and Prashant Bhushan, you will find that the first ground taken by them was to protect the integrity and independence of judiciary. This was because there is a possibility that the CBI had deliberately filed false FIRs to put pressure on the Supreme Court judges.

Since the matters with respect to which FIR was filed were matters which were being heard by the Hon’ble CJI, it was a very fair request made that the matter should not be dealt with by the CJI on administrative or judicial side.

I had made that request and I am not ashamed of it. It was, in fact, made to protect the CJI and insulate him so that nobody would raise a finger against him in future.

Justice Chelameswar’s order, referring the matter to five senior-most judges, was an extremely fair order. Why should it go to judges whom CJI had decided? That has raised more questions than answering them.

The prayer was to have an SIT probe under a former CJI. What was wrong about that prayer? Supreme Court should have lapped up the opportunity and hit out at the CBI for its approach.

A. The Bar also equally misunderstood the issue and lost the opportunity to guide the judges. The Bar should have guided the judges and said that CBI is misconducting itself and trying to portray a terrible image of this court. It was a golden opportunity for the Bar to insulate the judiciary from the executive pressure but the Bar lost that opportunity.

I have great regard for Mr. Suri and others but they should have put it to the General Body where they could have been counselled by the General Body to adopt the right course. But one gathers the feeling that they did it, perhaps at the instance of the judges, which is a really sad feeling. This is a great Bar and it is a great opportunity which we have lost.

Last question. You might be the only Senior Advocate at the Supreme Court who speaks up even if it is against judges. Why do you think the Senior Bar maintains silence on issues which directly affect the Bar and the Bench?

To stand and speak up calls for inviting unpopularity and very few people are willing to do that.

I must tell you that I am deeply disappointed by Mr. Fali Nariman, Mr. Soli Sorabjee and the Attorney General, Mr. KK Venugopal.

They have not understood the matter relating to filing of FIR by CBI which pointed fingers at the CJI, and have gone ahead and expressed their opinions.

It was a matter of great regret that the AG stood up in the court and said, “Prashant Bhushan and Kamini Jaiswal should withdraw the petition and apologise to the court.”I think that was a dark moment in the history of Supreme Court.

When Mr. Venugopal was appointed AG, I had spoken to you about how it was a very good choice. We wanted and expected Mr. Venugopal to be like Motilal Setalvad and HM Seervai and not like Niren De.

I love judiciary. It is not that I want to criticise judiciary. But unless we are critical from within, we cannot improve judiciary. How long will we tolerate corrupt judges? There have been dozens of them in Supreme Court. Nobody can deny that. Even CJI Bharucha had said so.

Speaking up against it calls for great sacrifice. Today I am being criticised by virtually everybody. Fair enough, I am willing to stand up and face that criticism. It calls for sacrificing one’s practice and I am willing to do it.

I have to look at the institution and at the future generation of lawyers and judges. What are we going to give them if this kind of dismal state of affairs is allowed to continue without raising questions? Are we not entitled to raise questions and are judges not expected to answer them?

I have come to realise that good judges or maybe all judges protect each other under the false notion that if they talk about it in open, judiciary’s name will be tarnished. But that is not true. Judiciary’s name is getting tarnished even otherwise by these few errant judges. Judiciary’s name will shine if good judges stand up and try and take corrective measures.

Importantly, good lawyers should also do it without worrying about their briefs. We have all grown up and studied law worshiping the likes of Nariman, Sorabjee and Venugopal. And when they fail us, then I feel they have failed the institution and the younger generation of lawyers like me. It hurts me personally.